You’re reading the Benton Institute for Broadband & Society’s Weekly Digest, a recap of the biggest (or most overlooked) broadband stories of the week. The digest is delivered via e-mail each Friday.

Round-Up for the Week of April 24-28, 2023

When the Federal Communications Commission last updated the benchmark speeds for broadband, Barack Obama was president, Bruno Mars was at the top of the charts dancing through Uptown Funk, Fifty Shades of Grey [NSFW] was steaming up movie theaters, and the New England Patriots had just beat the Seattle Seahawks in Super Bowl XLIX. More than eight years later, you might ask: why hasn't the FCC yet moved the dial on broadband speeds?

Congress has been wondering and this week it received a partial answer from the U.S. Government Accountability Office (GAO): despite the significance of the benchmark, the FCC’s reporting of the analysis and data it considers when assessing whether to raise the speed benchmark has been inconsistent and therefore falls short of the FCC’s own goal of having a transparent process.

Congress, administrators of federal and state broadband programs, service providers, you and me—no one knows how FCC commissioners determine whether and how to revise the benchmark.

The Telecommunications Act and Universal Broadband

The Telecommunications Act of 1996 requires the FCC to assess broadband deployment on an annual basis, specifically by issuing a notice of inquiry (NOI) and determining whether "advanced telecommunications capability"(1) is being deployed in a reasonable and timely fashion. The Telecommunications Act does not explicitly require FCC to set a benchmark speed to measure broadband deployment or to follow a set process for measuring deployment, beyond issuing a NOI and completing it within 180 days. But, as part of the proceeding, the FCC has set a speed benchmark defining when “fixed broadband service”—that is service that is fixed to a specific location such as a home, as opposed to mobile broadband service—provides advanced telecommunications capability. The FCC uses this benchmark to assess broadband deployment across the country, solicits public comment from stakeholders on the status of broadband deployment and the fixed speed benchmark, among other topics, and issues a report on the findings.

If the FCC’s assessment concludes that advanced telecommunications capability deployment is not reasonable and timely, the Telecommunications Act requires FCC to take immediate action to accelerate deployment by promoting competition and removing barriers to infrastructure investment.

In the FCC’s January 2021 Broadband Deployment Report, the most recently issued report, the agency found that as of year-end 2019, about 96 percent of the U.S. population had access to broadband at its minimum speed benchmark of 25/3 Megabits per second (Mbps) and that advanced telecommunications capability was being deployed in a reasonable and timely fashion. In the 2021 report, FCC also stated that 25/3 Mbps remains an appropriate measure to assess broadband deployment.

The Infrastructure Investment and Jobs Act and the Broadband Speed Benchmark

In the Infrastructure Investment and Jobs Act, Congress required the GAO to evaluate the FCC's process for establishing, reviewing, and updating the upload and download speed thresholds for broadband internet access service. Congress asked the GAO to include the following:

• How the FCC reviews and updates broadband internet access speed thresholds,
• Whether the FCC should consider future broadband speed needs (say five or ten years out) when establishing broadband internet access service speed thresholds, and
• Whether the FCC should consider the impacts of its speed thresholds on the proliferation of internet-based business, working remotely, and running a business from the home, video teleconferencing, distance learning, in-house web hosting, and cloud data storage.

On April 25, GAO published Broadband Speed: FCC Should Improve Its Communication of Advanced Telecommunications Capability Assessments which specifically examines:

1. The extent to which the FCC has communicated how it reviews its minimum fixed-broadband speed benchmark, and how it determines whether to update the benchmark.
2. The extent to which the minimum speed requirements of selected federal and state broadband programs differ from FCC’s benchmark, and stakeholders’ views on any implications of these differences.

GAO's main finding is that the FCC has not consistently communicated from year to year how it reviews the broadband speed benchmark and determines whether to
update the standard. The GAO found inconsistencies in the scope of the FCC’s analysis of the benchmark speed and in the explanation of the FCC’s rationale for updating or not updating the benchmark. As a result, the FCC’s reporting of how it sets the broadband speed benchmark has not been fully transparent.

Here are some examples from GAO's analysis of inconsistencies in the scope of the FCC's assessments:

• In deployment reports from 2015 to 2018 and from 2020 to 2021, the FCC discussed whether the 25/3 Mbps benchmark speed was sufficient for certain types of internet applications, such as high-definition video conferencing. In each of those years, the FCC concluded it was. However, FCC did not discuss this topic in 2019.
• In the deployment reports it issued from 2015 to 2019, the FCC discussed household broadband adoption by rates of speed, and in 2015 and 2016 it discussed the speed requirements of multiple devices being used in a home simultaneously. The FCC did not discuss these topics in its 2020 or 2021 deployment reports.
• In 2015, the FCC discussed whether potentially higher speed needs of future broadband applications should be a consideration in determining the benchmark. The FCC did not discuss this topic in its deployment reports from 2016 to 2021, although comments submitted in multiple years to FCC raised this as an important consideration.
• The questions the FCC asked in its notices of inquiry varied from 2014 to 2020, indicating that FCC intended to report different types of information from year to year. For example, in 2014, 2016, and 2017, the FCC asked whether it should consider higher speed needs of future broadband applications in determining the benchmark. FCC did not ask about future speed needs in 2018, 2019, or 2020, however.
• In 2015 the FCC asked whether setting the benchmark should represent an “aspirational or forward-looking” speed. In its 2015 deployment report, the FCC interpreted the Telecommunications Act as mandating a benchmark set in consideration of future broadband needs. The FCC stated that the 1996 law “is focused exclusively on the availability of advanced services,” indicating “the Commission should focus on services that are progressive or ahead in development.” To support this view, the FCC cited the legislative history of the act, and the FCC’s analysis of the meaning of “advanced telecommunications capability.”
  • But in 2020, the FCC did not ask about the issue and instead agreed with and cited a commenter who wrote that “adopting a ‘forward-looking’
    or ‘aspirational’ definition, as some recommend, distorts the purpose of the analysis Congress has required the Commission to perform." The FCC did not provide any further explanation for why it changed its interpretation.

The GAO also illustrates how inconsistent the FCC has been concerning its rationale and the types of information it cites to support broadband speed benchmark determinations.

• In 2015, the FCC provided an explanation of its rationale for increasing or maintaining the benchmark that cited research and its own analysis of data. When it increased the benchmark in 2015, FCC explained its decision by citing research and analyzing data on speeds offered by providers, the speed needs of common and emerging applications, and the number of devices used simultaneously in a typical household. In its report, the FCC cited multiple sources in addition to the comments it received. In subsequent years, the FCC’s reports offered shorter, less thorough explanations of its rationale for maintaining the benchmark.
• Also in its 2015 deployment report, the FCC cited changing uses of the internet as a reason to increase the benchmark. However, in 2021, the FCC disagreed with commenters that called for an increase in the benchmark in response to increased use of services such as telework platforms, distance learning, telehealth, and video conferencing during the COVID-19 pandemic. The FCC stated that it disagreed with these commenters because the benchmark does not represent the “highest quality service possible.” But the FCC did not provide evidence or analysis to support its decision.

The Impact of the FCC's Process

FCC officials told the GAO that the determining factors in setting the benchmark are the views of the FCC commissioners and their interpretations of comments received. Further, officials said they do not have internal metrics or standards that signal to the agency the benchmark should be increased or maintained. So the information used to make the determination is at the discretion of the FCC chair and commissioners.

Beyond the question of what the right broadband speed benchmark is, GAO found that the FCC's inconsistent process, based solely on the views of the sitting commissioners, means that the FCC cannot provide stakeholders with assurance that the benchmark represents an appropriate measure of actual broadband uses and needs. Additionally, the Commission cannot provide assurance that the FCC is measuring progress consistently and taking sufficient action to ensure advanced telecommunications capability is being deployed in a reasonable and timely manner. In short, there is no way of knowing if the FCC is fulfilling Congress' mandate laid out in the Telecommunications Act.

Stakeholders told the GAO that it would be helpful for the FCC to base its decision to increase or maintain the benchmark on data related to actual broadband use and applications.

What's Next

The FCC last issued a broadband deployment report in January 2021. Since the 2021 report, the FCC has not released this draft notice or any other notice of inquiry to solicit public comments on this issue. But in July 2022, FCC Chairwoman Jessica Rosenworcel circulated a draft notice of inquiry to her colleagues in which she cited changing uses of the internet as reasons to increase the benchmark to 100/20 Mbps.

"The needs of internet users long ago surpassed the FCC’s 25/3 speed metric,” said Chairwoman Rosenworcel at the time. "That’s why we need to raise the standard for minimum broadband speeds now ... while also aiming even higher for the future, because we need to set big goals if we want everyone everywhere to have a fair shot at 21st-century success.”

Nine months later, however, her fellow commissioners have still not voted to launch the NOI. Apparently, there are not three votes at the FCC to even start a Congressionally-mandated proceeding to determine if broadband is being deployed in a timely fashion—or even to update the definition of the service so many depend on.

Notes

1. Advanced telecommunications capability is defined as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology

Quick Bits

• Republican Senators Demand NTIA Remove "Liberal Wish-List Items" From Its Broadband Funding (US Senate)
• Sens Thune, Luján Request GAO to Review Broadband Regulatory Structure (US Senate)
• Colorado’s effort to attract more federal broadband funding seems to be working (Colorado Sun)
• May 2023 Open Meeting Agenda (FCC)

Weekend Reads (resist tl;dr)

• NTIA Seeks Comment on BEAD Challenge Process (NTIA)
• Principles for Promoting Efficient Use of Spectrum and Opportunities for New Services (FCC)
• The U.S.’s $42.5 Billion High-Speed Internet Plan Hits a Snag: A Worker Shortage (Wall Street Journal)

ICYMI from Benton

• Just a song before he go: Ajit Pai's last broadband deployment report is same tired tune
• "A Very Rude Culture Shock" 
• Chattanooga Invests in 1,000 Telehealth Accounts for Low-Income Residents, Social Determinants of Health
• House Hearing Examines Streamlining Broadband Permitting

Upcoming Events

May 1-4—Broadband Communities Summit 2023

May 2—IIJA Grant Funding - Still have questions? (Ceragon Networks)

May 3—FirstNet Authority Board Meeting

May 18—May 2023 Open FCC Meeting

May 22—Indigenous Connectivity Summit 2023 (Connect Humanity)

June 5—RightsCon Costa Rica (AccessNow)

June 5—UTC Telecom & Technology Conference (Utilities Technology Council)

June 8—June 2023 Open FCC Meeting

June 26—Smart Rural Community (NTCA—The Rural Broadband Association)

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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